BVA9500425
DOCKET NO. 93-06 396 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Buffalo, New
York
THE ISSUE
Entitlement to an increased evaluation for lumbosacral strain
with degenerative changes, currently evaluated at 20 percent.
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1962 to January
1964.
This matter comes before the Board of Veterans' Appeals (Board)
from a September 1991 rating decision by the Department of
Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York,
which denied an increased (compensable) evaluation for
lumbosacral strain with degenerative changes.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that he knows that the strain
he suffered in the Army precipitated his present low back
disorder, as he had had no back problem before service, and
osteoarthritis does not run in his family. He maintains that
over the years after service the episodes of back strain
increased, ultimately leading to his present disability. He
alleges a relationship between the back strain in service and his
present chronic condition because the same area of his back has
been affected.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran's claim for an increased evaluation for lumbosacral
strain with degenerative changes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the appeal has been obtained.
2. Lumbosacral strain with degenerative changes is currently
manifested by complaints of constant, dull low back pain with
exacerabations from time to time.
3. Objectively, the veteran has not more than moderate
limitation of motion of the low back and radiographic evidence of
osteoarthritis and disc degeneration without listing of the spine
or abnormal mobility.
CONCLUSION OF LAW
The schedular criteria for a disability rating greater than 20
percent for lumbosacral strain with degenerative changes have not
been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a , Diagnostic Codes 5292
and 5295 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the veteran's claim for an increased
evaluation is well grounded within the meaning of 38
U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he
has presented a claim which is plausible. We are also satisfied
that all relevant and available facts have been properly
developed. No further assistance to the veteran is required to
comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
I. Background
By rating decision dated February 1979 the veteran was granted
service connection for recurrent lumbosacral strain, at a non
compensable evaluation, effective from August 1978. The veteran
reopened his claim in April 1991 for an increased (compensable)
evaluation, but the RO denied it in decisions dated September 11
and 23, 1991. In October 1992, after a VA physical disability
evaluation, the RO granted a 20 percent evaluation, effective
from April 1991.
The earliest post service record of a lumbosacral spine disorder
is an x-ray, dated in August 1978, noting a history of three
weeks of low back pain. The x-ray revealed a partial
sacralization of the 5th lumbar vertebra and what appeared to be
a prominent first sacral segment. There was no evidence of acute
injury with specifically no evidence of fracture or dislocation.
Minimal hypertrophic spurring was seen anteriorly on the 5th
lumbar vertebral body. The sacroiliac (SI) joints were normal in
appearance.
A November 1978 letter from Howard E. LeWine, M.D., of the
Permanente Medical Group in San Francisco, California, stated
that he had first seen the veteran in August 1978 for back pain,
which had been continuing for six weeks. The veteran reported a
history of intermittent low back pain since 1963, usually
occurring after exercise. Examination of the back revealed
straight leg raising to 90 degrees bilaterally, with mild pain at
flexion to 90 degrees on the right only. Ankle jerks and knee
jerks were 2+ symmetrically, and motor and sensory examinations
were within normal limits. An x-ray on file, dated in March
1977, showed the first sacral vertebra to be a transitional
vertebra. Otherwise, the examination was within normal limits;
the diagnostic impression was chronic low back strain.
A VA orthopedic examination in January 1979 noted that the
veteran's medical history showed no specific injury, although he
believed that he had the onset of difficulty subsequent to weight
lifting. He was then employed at the Post Office as a laborer
and had lost approximately two months' total time because of
problems with his spine. Physical examination was not
remarkable, except for some loss in range of motion. The
diagnosis was recurrent lumbosacral strain, essentially quiescent
at the time of the examination.
Records from Kaiser Permanente, dating from September 1984 to
July 1990, reveal that the veteran was treated there for
recurrent episodes of chronic, mild-to-moderate lumbar pain,
brought on by participating in sports and by work-related strain.
There was no radiation to the legs, no weakness in the legs or
loss of sensation, and no significant point tenderness.
A VA Medical Certificate, dated in April 1991, noted that the
veteran had had low back pain since 1963, which had become
exacerbated in 1982 when he was working in the Post Office. No
real acute exacerbation was noted, and the diagnosis was probable
osteoarthritis. An x-ray taken in conjunction with the
examination, however, revealed an appearance of marked disc space
disease at L5-S1, with vacuum disc phenomenon, sclerosis on
either side of the disc, and spurring. There was some evidence
of sclerosis and buttressing at the L5-S1 level. The margins of
the left SI joint were slightly more hazy than on the right,
which could be consistent with degenerative or post-traumatic
sacroiliac changes.
A VA disability evaluation examination in August 1992 also noted
a reported history of an injury in service while lifting weights.
The veteran had been free of pain for about two or three years,
but then began to have pain localized to the low back area. This
had increased over the years, until at the time of the
examination he noted a constant dull, aching type of pain in the
low back, with exacerbations from time to time, particularly
following heavier physical exertion or strain. At no time had
there been any radiation of the pain, sensory loss or change in
either lower extremity, or bowel or bladder trouble.
Physical examination showed that the veteran moved about readily,
easily, and with a normal gait, although he held himself rather
stiffly erect. The lumbosacral spine curve was shallow, but
spinal alignment was good. On forward bending, there was
straightening, but not reversal, of the lumbar spine curve.
Muscle tone throughout the back was normal, and no pain was
elicited in any area of the back, even on deep palpation. There
was no pelvic tenderness. All back movements were performed
slowly and cautiously. Forward flexion was 0-65 degrees;
backward bending or hyperextension 0-20 degrees; right and left
lateral flexions 0-20 degrees. Right and left rotatory movements
of the dorsolumbar spine were 0-50 degrees. Straight leg
raisings, right and left to 80 degrees, were negative, although
there was bilateral mild hamstring tightening. There was no
weakness or atrophy found throughout both lower extremities.
Knee jerks and ankle jerks were found to be quite active and
equal. Sensation was grossly normal throughout both lower
extremities.
The diagnosis was history of old sprain-contusion injury of the
low back, with increasing low back pain, with limitation of
motion. An x-ray showed a transitional vertebra at the
lumbosacral junction and five characteristic lumbar vertebrae
above it. The intervertebral disc immediately above the
transitional vertebra was narrow and showed a vacuum phenomenon,
indicating disc degeneration. All the other intervertebral discs
were associated with Schmorl's nodes. Osteoarthritic changes
were present.
II. Analysis
Disability evaluations are administered under the Schedule for
Rating Disabilities, located in 38 C.F.R. Part 4 (1993), which is
designed to compensate a veteran for reductions in earning
capacity as a result of injury or disease sustained as a result
of or incidental to military service. See 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 4.1, 4.2 (1993); Bierman v.
Brown, 6 Vet.App. 125, 129 (1994). In evaluating a disability,
the VA is required to consider the functional impairment caused
by the specific disability. 38 C.F.R. § 4.10 (1993). Each
disability must be evaluated in light of the veteran's medical
and employment history, and from the point of view of the
veteran's working or seeking work. Schafrath v. Derwinski,
1 Vet.App. 589, 592 (1991). With respect to the veteran's
contentions, "degenerative changes" or osteoarthritis of the low
back has been recognized as part and parcel of his service-
connected low back disability.
The veteran is currently evaluated under 38 C.F.R. § 4.71a,
Diagnostic Code 5295, pertinent to lumbosacral strain. Under
this code, a severe impairment, with listing of the whole spine
to the opposite side, a positive Goldthwait's sign, marked
limitation of forward bending in standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or some of the above with abnormal
mobility on forced motion warrants a 40 percent evaluation. If
there is muscle spasm on extreme forward bending, loss of lateral
spine motion, a 20 percent evaluation may be assigned.
In evaluating the veteran's degree of impairment, the Board notes
that his symptoms are manifested by a noticeable stiffness of the
spine, moderate limitation of motion, hamstring tightening, and
x-ray evidence of osteoarthritis and disc degeneration. He does
not, however, exhibit a marked listing of the spine or scoliosis,
marked limitation of forward bending, or abnormal mobility on
forced motion. He moved easily and with a normal gait when
examined by VA in connection with his claim. Generally, the
evidence appears consistent with the 20 percent evaluation
assigned by the RO after the veteran initiated his appeal. Since
the veteran's appeal was continued after the assignment of this
compensable rating, however, the only question before the Board
is whether a rating in excess of 20 percent is in order. The
preponderance of the evidence is against a 40 percent evaluation
under Code 5295.
The Board has also considered Diagnostic Code 5292, limitation of
motion of the lumbar spine. This Code is for consideration in
cases involving arthritis confirmed by x-rays under 38 C.F.R.
§ 4.71a, Diagnostic Code 5003. Cases with severe limitation of
the lumbar spine may be granted a 40 percent evaluation, whereas
if the limitation is moderate, a 20 percent rating is
contemplated. Since the veteran does not currently exhibit
severe limitation of motion, a rating in excess of 20 percent is
not for assignment on the basis of arthritis and limitation of
range of motion of the low back.
In addition, the Board has considered the doctrine of benefit of
doubt under 38 U.S.C.A. § 5107, but finds that the record does
not provide an approximate balance of positive and negative
evidence on the merits. Further, the case does not present an
unusual disability picture with factors such as repeated
hospitalization or marked interference with employment, so as to
warrant a rating in excess of 20 percent on an extra-schedular
basis. See 38 C.F.R. § 3.321(b)(1) (1993). Under the
circumstances, the record does not afford any basis for granting
an increased rating in this case.
ORDER
An increased evaluation for lumbosacral strain with degenerative
changes is denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.